New Regulations Proposed for Faith-Based Entities

Earlier this month, nine federal departments published proposals designed to clarify the liberties and obligations accompanying the participation of faith-based entities in federally-funded programs.  New rules proposed by the U.S. Department of Education can be found here.  The proposed tweaks to existing regulations are important, not only to faith-based health and social service agencies that are directly funded by federal grants, but to a great many private schools, whose students, teachers and administrators benefit from indirect federal funding.

Happily, the newly proposed regulations maintain, and even strengthen the distinction between direct and indirect recipients of federal financial assistance.  For example, the current regulations prohibit federal funds from paying for ‘inherently’ religious activities.  The proposed regulations would change ‘inherently’ to ‘explicitly’, which entails, “activities that involve overt religious content such as worship, religious instruction, or proselytization.”  (Religious-entity recipients of direct federal financial assistance are not prohibited from engaging in such activities, but the activities in question cannot be funded with government dollars.)

The U.S. Department of Education has maintained a longstanding policy in which private schools whose students and faculty participate in federally funded programs such as Title I, Part A, and/or Title II, Part A of the Elementary and Secondary Education Act are not considered direct recipients of federal financial assistance.  That policy is spelled out in a FAQ appearing on the U.S. Department of Education Office of Non-Public Education’s website, here.  It reads as follows:

“9. Are private elementary and secondary schools whose students or teachers receive equitable services under ESEA or IDEA considered to be “recipients of federal financial assistance”?

“No. Private schools whose students and teachers receive equitable services under ESEA or IDEA are not considered recipients of federal financial assistance. These programs are considered to be operated for the benefit of students and teachers in private schools, not for the benefit of the private schools themselves. As a result, certain requirements that apply to recipients (which may include certain civil rights requirements and the military recruiter requirements…) do not apply to private schools by virtue of their students or teachers receiving equitable services under ESEA or IDEA. However, if a private school otherwise receives federal financial assistance, including a grant or subgrant of federal funds to implement a federal education program, the school would be considered a recipient.

“If a private school is a recipient of federal financial assistance, that school is subject to the federal civil rights laws prohibiting discrimination based on race, color, national origin, sex, disability, and age. If a private school is not a recipient, but the private school’s students and teachers receive equitable services under ESEA or IDEA, the LEA involved remains responsible for ensuring that there is no discrimination with respect to the federal education program.”

An excellent analysis of the newly proposed regulations is provided by the Institutional Religious Freedom Alliance, which notes that:

“Current concerns about religious freedom in the context of same-sex marriage and SOGI (sexual orientation and gender identity) nondiscrimination are not addressed.”

The publication of the proposed regulations in the Federal Register is part of a notice of proposed rule making process that invites public comment.  If, after reading the U.S. Department of Education’s proposed regulations, you would like to comment, your input must be received prior to October 5, 2015.  Instructions for submitting comments appear on page 47254 of the document.

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